issue a ruling. ■r this runs about

>> cooperateo proceed as if i wasn't here for the first argument so let me focus on what's dferent about texas. one thing that's different abxas is its definition of social media platforms excludes website. wean put the gmail issue to one side when lkbout texas. it also excludes websitesor and. in the first amendmentusess we call that content-based discrimination. that'snef the reasons this statute is unconstitutional. the other thg that's different is that iso respects this statute operates more simply because it f clines from engaging iviewpoint discrimination. we're edo thinking that viewpointiscrimination is a bad thing and the government shouldn't do it. do it it is a bad thing. when editors of speakers enga in viewpoint discrimination that is their first amendntight. it is also absolutely vital to

the operation of these websites because if you have to be viewpot neutral that means suicideyou have materials that prevention you also haveo ve materials that advocate suicide promotion. or if you have materials oyour site that are pro-semitic, then yohave to let on materials onto your site that are anti-semitic. that's a formula for making these bses very unpopular to both users and advertisers. so it is absolutely vital. the he things that -- other thing that makesex a little different is at least in psi the law texas was even more explicit in relying on the common cri analogy as simply■& labelingebsites common carriers makes the first amendment problems go away. that's fundamentally wrong for two basic reasons. one, they done operate at common carriers, they have terms of use that exclude varying degesf content. co, texasan convert them

into public common carriers by its say-so. i welcome the court's questions. >> if these laws go into effect, what steps wouldou client take to comply. in particu addressing the situationcompliance in texas and florida as opposed to nationwide. >> sure, i mean, one of the things they'd contemplate at least with respect toex in the first instance, is there some way to withdraw and florid? and of course texas had tha in mind in the statute and spifically said, we essential have to do bune in texas and can't discriminate against users based on their. yo graphic --eographic location inninto if we lose this including the idea that we could be forced to engage in expressive activity in texas we would fundamentally have to change the way we

prid our service in order t engage -- in order to provide anything like t svice we want to while not engaging in viewpoint discrimination we basically have tolinate certain arias of speech entirely. so we just couldn't talk about ice prevention anymore because we're not going to talk about suicide promotion. i guess we couldn't have o-mitic speech because we're not going to have anti-semic speech. we have■ tfi out some way to try to engagen even more content modatn or editorial discretion to try to get us to level where we're more benign andomehow we don't run afoul of texas' law and then oh the -- then on the disclosure provisions the record reflecks th ytube would have to basically increase its disclosure and appeal process basically 100-fold in■q order to comply withexas law. i mean i'm happy to talk more about the common carrier issue, i think it's a central part ofet

section 230 treats mie clients, the websites as common carriers to the contrary, congress specifically, 47 u.s.c. 23 subsecti 6, which weite in our brief, it's a provision in the same a of congress that says interactive computer service should not be treated as mm carriers. i think the thrust of 2 imo car. don't just put through all of this material. we don't want that. we want you to exercise editorialrder to keep some of the worst of the worst off the site. >> all that is true. i acknowledge all of that. but it■e■s ays, that's true only's not your speech. and that seems t be in tension a bit with your statement that everytng is your speech.

stice barrett pointed out a feature, these algorithms arrange, st, promote certain pos by users and not others. and is that not your -- not yours, but your cen■[■x >> i don't think it's our speech in the way that section 230 talksbo the speech. and i think r these purposes you haveo distinguish between the speech that is the editorial function and the underlying user speech. >> i understand that. i didn'tea to suggest otherwise but there's some editorial speech, your term, going on. >> i think that's right. >> so the carrier wld be liable for ih? >> i don't think so. i mean, you know, i didctlly reread the brief they filed at least in the gonzalez casend i think that you could make a stro argument based on the text of that statute that that nd of editorial functioning is not -- is not something that causes you to lose your 2

protection. >> so it's speech for purpose of the first amendment, your speech, ur editorial control, buthewe get to section 230 your submission is that that isn't your speech? >> yes, as aatter of statutory construction, otherwise section 230 ends up being self-defeating. the point of section 230 waso promote editorial discretion and th court wrestled with these issues. they're hard issues. certainly applaud the insthaingt you shodn resolve them here. but i don't inthat just by recognizing that my clients are gad in editorialut what's going to ultimately go to the individualized screenhaa user is going to see when they tap into their weit or their application, i don't think that's the kind of speech that is -- you're talk about in the 230 context and if you did, i think you would defeat the fundamental purpose of 230. they wante you, theyand my clients and others, to exercise editorial discretion to keep bad material out. reec to other

people's speech. seems like we have speech and then we have speech. >> you can't -- you literally -u can't have -- >> it's a hard question for us, it's perfectly relevant here and very important. 230 preempts things. and we don't know how much of this law it preempts. >> absolutely. but this law is unconstitutional in all its applications, and certainlitas no plainly legitimate sweep you don't have to reach the 230 question directly here. i would say when you're readin , you wouldt eep in editorial discretion. if you do you'll defeat the fundamental purpose of section 230. >> what about editorial scretio- >> i want to raise with youhe question i raised with the litor general who offered a thoughtful resns many of your clients' terms of service, while reserving some editorial discretion, and i thinabt most of speaking about the things

core by 230, obscenity. etc. go out of their way to promise an open forum to all members of the public. and go out of their way to say we don't endorse what other people s on this site. and go out of their wayo say all views shall flourish. that's not true for all of your ies, but is true r many of them. what do we do about that? >> so i would say tha y know, it's true. some of my clients, and some more than others, i think all of those terms of service ashe general said, go on to say, and there's certain things that are out of bounds. ani think -- it's a -- is is a factually through tru thg at my clients, in the main, as long as you stay within e line, they don't want t nd fair dialogue. if you look at the center for growth and oornity brief, it shows you some conservative voices he flourished on these bsites.

ben shapiro and daily wire are killing it on facebook. we do want a broad diuson. there's some stuff that is just out of the lines. i n'think it's as simple to say it's just the 230tu. again we had a debate about what otherwise objectionableth oprese particularly carul about wa to err on the side of to keeping some bad material off. >> you mentioned that a few times. press the other way though. doesn't it also hold that on your view, part of the editoal discretion of that platform would be that it cod algorithms digned specifically to try to attract teens to addiction? or suicide? depression? those of things as well? that would be part of their editorial discretion too. >> a website, i don't think my clients -- >> don't mean to cast aspersions on anyone. i think it's a natur

consequence of your position isn't it? >> there would be protected first amendment activity with that very different website with a business model that i don't think would stay in business very long anit is possible, as the it states has pointed out in itsfentoncern and you identify a different government interest that maybe the government might be leo do something particularly ift does in it a content-neutral way to address those concerns. to get back to something wrusties kavanaugh pointed out before, i think that both texas and florida have been pretty aggressive about their government interest here being something that is not jusnoa legitimate interest in the first amendment context but is affirmativelywee ing to level the -- we're going to amplify some voiceanwe're going to make cerin- put burdens on private pti so some voices can be louder than otrs or some people can get a boost from what they're getting in the marketplace of ideas. the only place this court has ever allowed that was in turner.

and i mean justice kavanaugh you point out, one t things there wastil ing in turner is that bottleneck or chokehold oth content that we into individual houses. and i think that's what made what was oerwise an impermissible gornnt interest a legitimate government interest in that narrow context. maybe you could say the same thing, i don't know if it's ila good law but there's a scarcity rationale. os scarcity÷y- rationa o this cd that in 1997 in thecase. >> can i ask you about a distinction betweenossible kinds of anally kaigs of the texas law? so one is the application that prevents you from keeping out certn eech that you want to keep out. you said anti-semic eech. it could be any of a number of things. i understand it, the texas law also prent-- prevents you also from doing something se which is supposeouanted to prevent anti-semites from

posting ytng. you know, you want -- you just wanted to say that ty' a class of people we're not even into let them post cat videos. should we think about that set of differently? >> i don't think y suld think of it radically differently. it's a different application. but i think it's the same idea. whicishere are some speakers an few, but there areomspeakers where they are so associate with aarticular viewpoint that their -- it informed essentially all of their speech and the speech of other people in the forum. if you have a white supremacist on your speech forum and they're posting there, it's going t cause a lot of other people to y what is that person dng? what's going on here? why are all the dog ptos white? it's going to fundamentally change the dynamic on the website. and i think a website trying to promote discussion has an -- a first amendme right to exclude those people

and in practices ts,ou know, what is used to exclu st of, you know, sexual predators which is something aga t government can't do. packingham, butacook does. and there's certn other people, younow, very distinct ewints where it's --n a sense we know the viewpoint is problematic, even if the partul post >> but mr. clement. i just wanted to follow up on that. seems to me that justice kagan's question gets to the distinction in 303 cate between turning people away and the speech that youave. if you think about it as violencing someone you let on your platform that smsore like speech or content moderation to the extreme, fo example. but i assume the implication of your answer to st cld tell the e mitt we're not open for business to you. right? >> you can tell that person that our speech forum is not open to you. and i think that's what makes it

different that texas is focused on speech-orriented platforms. if you're in the business of speechndou have somebody, and again this is t sort of other prohibited statuses. th iviewpoint. and so you are anti-semite, we don't want you to participate in this conversation. >> religion then. >> sure. ani nt to have a catholic website. i can keep ofsobody who a notorious prostt. i want to preserve -- i want to preserveheuture the discussion on fum. it's a private forum and the governmentan tell me as a private party let the protestant into the catholic party. i don't think so. 2? i don't think anything been said about it so far. so you say that section 2's individualized explanation requirements violate the fst amendment because they impose a massive burden, right? that's your argument? it seems to me that european union has imposed exactly the

same, pretty much the same individualized■á w operates there that texas has. and i'm not saying whatever the eupean union says is ois constitutionaler but just on the practical question of whether it's too chf a burden, if it's not too much of a burden for your clntto do it in europe how can it be too much of a burden for them to do it ear? >> as i understand the reirents they're different. they're materially different. and in a t european union provision has sort of a built in reasonably practical provision right into what you have to do. you only to do what's reasonably prtil. this is an absolute requirement to respondurver takedown and that's over a billion takedowns comments in a quarter for youtube and there'slsan appeal process which i don't think is co-exteivwith the process in europe. just as a pctal matter i think this is more burdensome.

as you said, the first amendment do not apply in europend i think that having this kind on t is really an editorial discretion decision is potentially, i mean, hugely problematic. if you tk is and said "the new york times," you have to tell us whyorejected my wedding aouncement, we only take like 10% of the wedding announcements, you have to tell me. even if you automiez that and said, one if you weren't rich enough, two if you weren't coected engh in new york social circles and three we just didn't like the way you look. >> some of your clients are humongous. if you want to says this unduly burdensomeheyou have some obligation in thdirict court to try -- is it enough for you to say this is a huge sphwhurd so knock this out. didn't you have to provide somethg show how much, what resources would be required? ber these megaliths.

>> we did. there's more of a record in the texas case than the florida case. the witness for youtube in their declaration specifically said this wld be 100 times more burdensome than their current process. so there is a record on this. it is incredibly burdensomrgumes intriguing to me. the distinctionshat you're drawing somehow, to some degree, escape me. is it your positn at you are exercising editorial discretn as to everything but, s, youtube, as to every video that is pceon youtube, you have exerciseddirial discretiont at ? >> i would say that we have exercised some editorial discretion to not sort of eliminate that from the site entirely and as to an individual

user we've used what are tycally in many cases some of them are not neutral. even in theris i think made quit clear, althought a certain some algorithms were neutral betwe re pilaf and terrorisms, there were other efforts to -- efforts to ge terrorist stuff off those sites. >> if you have a newap and you published the content that appears in every single one of of the videos oyoube that you allowed to be to be included you would be liable for the content of that material. i don'unrstand the rationale for 230 if it wasn't that. you can't be held spsible for that because this is really noyour message. either it's your message or it's not your message. i don't undersndow it can be

both. it's your message when you wan to escape state rulation, but it's to escape liability under state tort law. >> i don't really think we're being inconsistent and what i would -- i would try to draw theagey to a good, old-fashioned thogy. if i put together an anthology 20 short stories, everybodyheng short stories are stil the product of thendividual author but as the anthologist, ashe deded which 20 got in, which ones didn't, i'm responsible for those editorial discussions. those desis. for amendment decisions. you can distinguish between the unrlng material and the editorial decisions. in common law th publisher was responsibl for both. and so th we still liable for what theeplishing the author's work. that's what congressand to get ridf 230. they wanted to essentially give our clients an incentive to weed out of the anthologies the stuff

that was harmful for children and problematic. th('s why i don't think it works to say oh, well, then that's your speech so y'r you're liable under 230. it's thatdirial control, weeding out the bad stuff. that was whole point of 230 to empower that. >> ion know how you coulde -- he liable for -- well, i take that back. fofiion. but certainly if it was -- i an if you back in the■z day whef some written material was considered to be obscene,ou put together an anthology tha included obscene material you could be sued. today you put together an anthology of essays, nonfiction writg,nd there's defamation in there, then the publisher could be eu. exercising editorial discretion doesn't >> not in common law. that w congress did with 230.

congre lked at common law and said this is problematic. the only way to avoid liability with common law if you act a conduit and let everything bit of impta then you -- >> d't want to belabor the point. let me say to the sides in prior cases. you say this is just like a newspaper basically. it's like the "miami herald" and the states say no this is like western union, it's like a telegraph company. and i think -- i look at this and y it's reallyotike either of those. it's worlds■j ay from -- from beth of those. it's nothingike a newspaper. a newspaper has space limitations. no matter how powerful it is it doesn'nessarily have the

sa power as -- as some of ur clients. but put at aside. newspapers overtly sd messages. they typically have an editorial. they mayá2k he an editorial printed 365 days a year or more than one. that's n situationáw with even the most prominent of your client i don't know how we can decide this case by say, by juinto one side or the other of this case law. >> justice, let me off t thoughts. this isn't the first time you're wrestling with t iernet. you wrestled with itn reno and last ter in 303 creative. this is more like the newspaper or parade organizer than a coonarer. as to the cases, whether you think this is differentro a newspaper, i mean the arguments that you're pointingo say it's different are the argues thatho cases wrestled with and said didn't matter. i know you know this, but there was all this language about it

being a monopolist, and tt s in the context of a local potical election, if you couldn't get into the "miami ra" court said it didn't matr. then in hur lee there's a lot of language in the court's opinion that says, you know, this n like much of a message. they let some people show up ev i they get there like the day of. and the only thg ey're doing is excluding this group. the exclusion was the message that they re sending. it's theesge the state was trying to prohibit. that's kind of the same thing here. >> let's say youtube were a newspaper, how much would it weigh? [laughter] >> i mean it would -- it would weigh an enormous amount which ishyn order to make it useful there's more editorial diskrergs going in these cases tn y other case that you've had before you. because if -- people tend to

focus on the users that get knocked off ti cutting room flo. but both these statutes also regulate the way that these socialebtes get you down to something that's actually usable to an individual user. and in fact if you trie to treat these entities like a true common carrier, fst in, first out, order of, you'd open unwf these websites andt uld be gobbledy-gook, half of it in a language you didn't understand. and you'd get all this stuff yo didn't want. >> i'd like tgo back to the individualized explanation requirement. please remind , at did the district court do here? did it grt you an injunction here? that was the ciritourt who did that? >> yeah. >> so it was the district considerate who looked at the amount of material you submitted and i know your declaration, youtube said it would be a burden, 100 times more than it

do now. case of that -- whether that was quantity if id or no was it? was 100%ore, 100% more what? >> 100% more of its current effort. >> we stil don't know what the thers a lot of unknowns. but this was a challenge with respect to. that and texas seems to saych just need to have the computer spit out -- one tou 10 reasons. y have a few iividualized ones you could just explain those individualized. what do we do with that dispute? because it is a facial challenge. >> it is a facial chalng it's a preliminary injunction. we have been overomof that. here there was- just declarations. there were depositions taken. there was a record that w put together on all of this. and texas was taking a slightly

different view of what the buen of the -- of text two re there. so i think on that, you look at the railroad before the district court you sul affirm the district court'sreminary injunction. i also think even what they say on page 44 of their red brief ks in a relatively less bdensome way as long as your editorial policies are sufficiently specific and particularized. and what they're basically sayings,ou could change your editorial policies a little t to make it easier to comply with this disclosure obligation. that seems -- >> that begs the queio right? because they're affecting -- ok? >> i just have a quick question. so part of the dynamic that i think is going on in these cases is the fact that this regulation is enacted by theemratically elected representatives of a

state. and i suppose if the state's regulati othese platforms gets too burdensome th platformy forget it. 'rnot going to operate in your state. and then theitens of the state would have the chae determine if that's what they really wanted. that'sort of how i'm looking at this at a meta level. what caught my aenon was your response to the chief juste en you suggested that your client couldn whdraw from the state of texas, because you read thehn provisions relatd csorship and geography as ensuring that you d'to so. i had not read that provision in that way. can you say more say more about why that was ur interpretation? >> sur is is not do not discriminate

against texans. the fact that it is preventing us from discriminating against someone in texas ibacally telling us that we cannot geo-fence our service and try to essentially explain -- sometimes you get your cable service with the provider and cannot get your football game. they say if you are mad about it, call the number on cam plate -- and complain. we cannot do that rponse to this law. the leaders in texas were le to tell your constituents if you , like your website, you can keep it, we are not going to threaten. they cannot pull out based on regulation.o even if we could ra different way, you are saying it is necessary, i guesth dovetails with my concern about us not having state interpretations or an applatn to really understand. i can re ts differently. it seems like it is fitting into the set of things you'reot allowed to do. you cannot censor people based on the viewpoint of the user, you cann csor them on thebasis g

expressed, a y cannot censor them based on their locationn your state or another part of the state. i guess i do not necesri see that in the same way. you cannot just automatically do that, i guess. >> it seems to me quite clear that iisesigned as the hotel california provision. a poison pill. you cannot leave taseven if you want to try to do that as a way of showing this is a way of regulating activities. so, i do think that is the right reading. the fact that it is ogphical location in texas is kind of a clue to that. it is not something where if y are a texas fan you are prected matter what in america. it is that you cannot do the geo-sensing that you might do to comply witandiosyncratic state law.

just for the sake of completeness, t rt of the preliminary induction, there are challenges to theserosions and it's one state trying to regulate everybody so that is pa of the case that will be here but it is notere. all this is is a preliminary injunction that runs to my clients. this statute has ama universe of people but if there is someone else out the wies d t covered by this injunction the , statute could take effect on those people in the same is true florida. >> thank you, counsel.■7■6 >> mr. chief justice, if it may ease the court, i want to pick up with the question jti alito asked to my friend about the idea that the social media't into either analogy or paradigm. i want to acknowledge the force of that intuition.

they operate as a massive scale thatoebeyond any particular parade or beyond any particular newspar. i think the right thing to do with that intuition iso recognize it's not like you can exempt them from the first amendment. they are obviously creatingthg y expressive and taking this quantity of speech on their website and curating it and mang selectivity decisions and compiling it into a produc users will consume. the first amendment apiebut i think those kind of ncns about how the social media platforms and w ey look somewhat different from the other kinds of expressive products this court has reviewed in prior cases can come into thh respect to any particur regulation. we think it's not satisfied here herewe think it's not sasfd here because of the way texas has designed his law. it's not necessy re to figure out how the first amendment applies to new

tenogy in general and every possible wsite in the internet inarticular. this law is a clear defect. texas has tried to countermand the protected speech positions t platform and the only justification is offered to the ur is that it wanted to amplify the voice of users on at platform by suppressing the platform own protected sech. that is a defect that's clear in the first amendmenand the court can say that and resolve this case. i welcome your questions. >> when i asked you about the difference in treatment of some prate parties as opposed to i similar conduct. your answer was of course that would be different. the government be bound to complyitthe first amendment. there was some discussion in a number of the amicus briefs about instances in which the

say petitioners here and the government coordinatinefrts. how would you respond to that? >> i think the position where -- we are offering here and that the positionhe court will consider next month and the mercy case are entirely consistent. we acknowledge that if the governme aually coerces the platforms and takes over there e actor and would be to firsamdment scrutiny. we vigorously disputes that is actually hapni in the federal government has engaged in kd of coercive conduct and we dispute the legal standards thaterapplied in that case. ere is no inherent tension here. the federal government c a and criticize the social media platform content moderation decisions using e lly pulpit to expressie and at the state disagreed with how they werexeising their content moderation, they could have done the same by criticizing them ar

adopt a separate standard. the state said they're going to pass a law that takeov their content moderation. and dictates it has to be done in a different way. >> the texas law even more than florida can be understood as an pansion of public laws. e ited states is often in a position of dendg a public accommodations laws and insisting that they be vigorously enforced. how do you seehatexas is trying to do as consistent wit the broader stance about public acmmations laws? >> i want to stake out potentially some ground with respect to public accommodations laws on a

particular status. we think the laws are valion their face and they serve compelling governmental interests. to the extent you are looking at how ordinary pubc accommodation law operates, the refusal to deal and serve, we think that's a regulation of conduct. ornarily, there would be no first amendment problem with the application of that law. i knowledge that he gets more complicated when those ls e applied to a business that is providing an expressive prodt in cases like hurley, certain applications, sometimes the ve way to first amendment interest. the court has never suggesd that the refusal to deal are served based on status and wh search respect to an association would fail uer first amendment scrutiny. instead, you look at 303 creative and there the concern was about changing the message or a case like hurley. gay and lesbian individuals could march, but you couldn't

changeheessage by hauling a particular sign. we recognize there wilbe applications where you have to conduct that analysis but if the -- but t qstion is can you , bar people from creating an account? th wt to lurk on x and read other people's post, that law would be valid. i want to brily address the question about cba presumption -- preemption under section 230. i want to say there are unresolved issues here. i would warn the court away from resolving how much conduct 230 protects and how that interact with the texas law here. the onlyoimes act in good faith and questions about what it means for the platform to takeowcontent that's otherwise objectionable. however those disputes might shake out in a particular case, surely texas is notaying its entire laws eempted.

and fully protected. what the court could do, not kninthe scope of how the preemption issue might resolve is whatever exists&ithat cagory of speech that texas is prohibiting, the editorial provisions versus what 230 would ofr on the other hand whether , that is a big category or little category all t , things in that category constitute protect decisions by the platform that haven't been adequately jtified. and i think that is u need >> the legislative body enact a law requiring viewpoint neutrality in some area and it does so becae is concerned that people who express a particariewpoint are ffing discrimination. is that unconstitial that the grounds that the intent of the legislative body was to benefit a particular group? >> i d't think that kind of

lawould immediately be unconstitutional. if it's structured like a generally applicable public accommodations law, there might beignificant governmental interest in being able to protect against thatof discrimination. >> unlese are any further questions? >> co one more? >> sure. >> governmpend a lot of maybe i should have asked you this with respect to the florida law. just given the bread of that la and why are internet service in your view so different and whaifhey wanted to make certain content distinctions? >>nternet service providers are fundamentally different because they are engaged in transmitting data in order to ma wsites accessible and that is not inherently expressive. they are providing the infrastructure, cable and fiber upix and -- fiberptics and serve make sure you can log in your home computer and access the inrn at large. but alonth way they are not own.

we would put them in the se category as telephone and telegraph companies or ups where you could say they a lerally facilitating the transmission of speech, but they are not creating an expressive product th cld implicate the first amendment principles at stake.yo might ask if they wanted to start discriminati wh respect to the services for particular kind types of websites. maybe an intneservic provider decides to slow down service atreaming site because it wants direct internet traffic to another website o streaming service. we think net neutrality can come in there and say you are not allowed to discriminate based on content. that's because there would be no you lfsive speech or compilation people don't sign up with comcast or veriz tgive them curated access to the internet. they are engaging in service with the company's because they need someone physically to transmit the data so they can

get access to the whole internet. >> can i ask one i don't have to buy anything you just said to rule for your positi [laughter] anything you just said on net neutrality, right? [laughter] ree with me but i'd like to persuade you meday. >> i just want to make sure that's ll off. >> we think the platforms are engangn expressive activity and is protected by the first amendment and you can leave th conduit questions that come up in the net neutrality context r another day. >> tou, counsel. mr. nielsen? >> thank you. it has been a long day. mr. chief justice and may please the court. this is nothfirst time new technology has been usedo stifle speech. telegraph discriminate bas o viewpoint, prompting a national scandal. yet under the platform, western union was making choices not to

transmit prounion views. ies or family go to work online these days. platforms that passively host the speech of billions of people are themselves the speakers and cadiscriminate, there will be no public square to speak of. we know that becsewitter has admitted their theory of the first amendment will allow them toiscriminate not just based on what is set on the platform, but on the basis of religion or gender or physical disability.n. tha's laughn 2 and implications are grave serious. as new york explains, if these algorithms our constitutionally protected, platforms might be le to continue selling advertisers the ability discriminate based on race. or as professor lawrence lsig

and tim woo who do not file tes,auon not just dates but congss might be powerless to address the social media crisis devastating the lives of kids. hb 230 is a de effort to regulate that in terms of discrimination. platforms can say anythi ty want about anything de hb 20. eyan say anything they want. users can block anything they don't want. vonty communication where people want to speak and listen. this law is nowhere near the heartland of the first amendment . instead it is democracy d federalism, not a facial pre-injunction. i welcome the courts questions. >> if this was so clearly within a common-law tradition as you suggest, why hasn't congress"m

en fit to act as texas has? it appears mr. clement suggested that congress has acted in the opposite direction would you comment on that? >> with alreect to my friend, i don't see how they are reading of iatll consistent with congress. they have policy arguments about how it should work but just read the words of t stute and it doesn't work. his suggestion that congress h somehow kicked out texas, i don't think it's consiste wh the text of the statute. did not hear a lot of textual arment. that would be my first answer. myecd answer i have no idea. , i do know thatex has the ability to protect texas and that's what they've done here. >> yan by saying the

atrms want to keep out this person or that pson on the basis of race or sex. and then you said that'nothe first amendment. the first amenendoesn't apply to them. it respes th the government can do. the government is saying you must do this. got to explain if you don't. that's not the first amendment. >> the first amendment is big anapplies a lot of different■] wa. it is true, for us,e e it is no, it is conduct, we can require neutrality. in oerases, the same companies are saying when new york or in other states you cannot have algorith thook the kids. they say we have a first amendment right to do at it's the same fir andment that says, it will be hard for any state to say you cannot have an algorithm that hooks kids. >> i'm sure if the same of the other states but the question is, th d't have the obligation to act in the same

way that you as the state have the obligation to do. they can discriminate against particular groups they don't like, whether it's a group that encourages kids to take the tide you have different obligations. >> i guess a couple ways i could respond to that. my reaction cing to the case was the same as yours. wait a minute it's their own , platform. you cannot censor. th a privao they came up with the telegraph. telegraph had the technological ability to say we are not goin to let this type of speech rough. >> you are right but you a assuming that they are like the legraph.

it seems to me that is a big part of what the case concerns and i am just nottelegrap had ae of monopoly. if you did not haveo -- if you did not want to use the telegraph that was there you did not have another choice. i'm not sure the same thing applies with respect to social platforms. >> so i giveou my theory for why mm carrier support. i agree the cases are really hard to figure out where conduct starts and speech ends and all tt. you look at the various cases, some say they cannot be renciled. i'm not sure about that but it's a helpful way to think about it. we know there is a line between speech and conduct. we know that common carriage has always been on the nonspeech side othline. thee t line.

so if this falls within the mm law tradition of what is common carriage, nobody has thought that falls on eech side of the line. we can't make them say something that they did't want to say. signal to the court which side e aren. >> that turns on who do you want to lead the judgment over who can speak or not speak on these plfos. do you want to leave it with the state or with the various platfos? there first amendment has a thumb on the scale in that question. >> it does and that is w i said it is important to gomeertt has to end where everything is covered by the first amendment. the court has said the wayha we tell the difference is whether it's inherently expressive and the crtas said what they mean by that.

they talked ou in miami ra you are not a passive conduit. in her early -- in her ear -- this court leisure haddock a case where ty lked about what these platforms do. they said they are passive connected to the speech on the platfo a they are agnostic about the content. 's one big algorithm that is smashing things together. i think that's important. i want to stress this is a facial posture. you look at the breadth of our statute, we talked about whether you haveo st someone's speech. there is also you just want to read facebook, that's one of the provisions of our statue. want to go onlininhe morning according to their theory, they can stop y f doing that. that's surely public accommodation law. the eahat they don't like somebody because of their race to say we will not allow you

onto our ptform, that surely cannot be constitutional. that goes beyond content saying we will not let people even look at what we are selli. it is like a bookstore saying we will not sell you our book. that's different than we will not publish your book. >> do you think there are unconstitutional applications? >> that's a hard question. suect there might be. >> what would they look ke >> the one that cometoind would be, imagine a publisher did not want to publish the book written by the proud boys. that is the example they use. you might very well have a challenge to that. the obm for them is they picked the most vile example when we would say surely, you

can let them on facebook andou cannot take them off bau somethg outrageous. there has to be a limit. that is why a facial resolution in this case doesn't work. >> how do you separate one from the other? >> that's hard. right? i woul say this court struggled with that in 303 creative. it's really hard to know when something become expressive and the court cases like dale about when something happenedthe are hard cases but in all of them, the court has had facts d looked at the facts of the case to try to figure outow to apply it, whether that kesense here in this situation there is a , lln applications of this law that are perfectly fine. they pick some of the most vile possible hypotheticals, ignoring the provision of texas law they ver addressed which says under texas law, if you don'want to hear conte, ey are allowed to make sure you never hear it.

so all you have left,hey never respond to it but it means all that is left is i don't want to hear this type of speech. it's just voluntary communication. that's a telephone. >> mr. nieyou heard during the prior argument a lot of nversation is. the last argument about uber, etsy, what platforms does texas law cer? classic platforms like youtube and facebook? >> that is what the opponent said facebook, twitter and , youtube. so apparently if it e texas courts, if not them, who

gets to understand what t scope of the law is? >> we would have to prove it at trial. the law says it applies to any platform with over 50 million users. i'm not sure where some of the other platforms are on that. >> you're making that judgment sed on size. as soon is nothing about the definition. we we inting out the florida law and defining wt platform does and how it works would encompass uber, for example. but you are assuming based on numbers? >> there is also aeparate al media platforms as a wsi open to the public, allowing the user to create an account and enabling users to mmicate with other users. for the primary purpose of posting informatn ntent. >> so is it the position of

texas that that definition covers the classic social media sites? like sites like facebook and youtube? >> yes, your honor. >> and it wouldn't sweep more broadly? two things like etsy? >> i don't think so. if the district court >> the distrt court thought that it coveredhaapp. do you think it does? >> i do not know the answer. we don't haveisvery instead. these are the three we are sure e vered so it might be that there is another reason why it's rd to do this on a facial basis.gt it could be what'sapp which looks likeephone app to me. >> wthe big three, there are some email looking nctions, aren't there? i appreciate it is hard to do this because we do not have a record but i understood that facebook which you say would be coverehaa messenger function. it looks like eml.

wouldn't u ve to do this at the level of the functionalityhs rather than at those entity leve? >> yes, your honor you would. n jt that. you would have to alsoo through different types of verbs cling our statute for censoring, including the one they keepgnoring, which is the ability to rei the expression of someone else. u ok at the text of the statute. theories would mean that even if you wantedo lurk and listen and see what other people are ying, they can kick you off for any reason at cldave someonr poed anything or their speech intical to the speech of someone else, their theory as we can kick you off. that seems to be pretty far into the world ofubc accommodation. 303 was naow pace. if that's what it means, now we are really big.s8 lobster two point:> -- 2.■the ie

protected by the amendment. >> during the prior argument the was some discussion about , how difficult le ll be if these injunctions are dissolved. a parade of horribles and expenses and difficulty th geo-fencing texas or florida.co? >> two answers, if i may. the some suggestion that prohibition on discrimination against texas or part of texas is somehow a trap. it's not true that is not with the statute ys. there is a separate provision about thjusdictional hub when you are doing business in texas. ev if texas tried to do that there is something cope personal riiction you can leave for them. that argument is not true.

the other part i think that is important about this is what is the remedy here? it's annjction. there is no damages here. it'annjunction. wenoit will not flood the courts because the injunction against the attorneys generais limited to the attorney general. there is private enforcement in --f section seven. and we have a handle cases you don't get damages so it's hard unless you have a really good case to be able to go to court and nobody will send you damages for prevailing. i think that matters a lot in terms of the real world consequences. they will have some lawsuits by the attorney general for injunction and if we can't provh thatimination they will , prevail. >> did to say they could stop dog business under texas under this law? >> of course. it's true under the law but it's also just true as a metal of

-- matter of personal jurisdiction. under the law, yes. >> how does that work when you talk aacebook? if somebody -- they send something into texas, are they doing business in tes? >> no, but that would be a fun jurisdictional cas the answer aderstand is you have to purposely avail yourse othe forum. merely because somebody can look atouwebsite if you don't have a purposeful direction, that's generally not sufficient. >> but it is a worldwide sort of thing a people will be sending stuff left and right and you know that as a company. i do not see how they can ll off texas from the activities of the social media platforms. >> theythey have the technologil ability called geo-fencing which they can carve out. if they wanted to, they could obably cut off this building itself.

more than that, it shows up there and if you wantoave an account with facebook or twitter or other tre is a contractual relationship. they have customerth are in these places and people say they crgg money. you are the product so they are taking your data and selling it to the advertisers just why it's important th wrecognize that if this algorithm is protected the constitution, it can take that data and sell to people and have highly targeted ads. they explained that on page 12 of the new york reef. ey picked the most vile

example which is things we don't uslly use in the facialolloof s. there are many fine applications that the cou nds to remember and not to seida. >> what about terror speech? >> the first response to that is the provision of the statute they ignore which is no user has to receive anything they don't want. >> that still allows the communication oft. most of the ivse is gone but the next level of this under texas w,t would not be illegal. i'm assuming a lot of the$h terrorism will be come join >> no, just the pro-al qaeda messages that were common pre-9/11 and post-9/11 button on th ely incitement. >> we put aside the first two levels. they are allowed under the statute to pick any catery they want. if they want to ep category, that's their choice booth and

wanted could thecago out an't do it on a viewpoint basis, how does that work with rrist speech? >> 's hard to say that they can predict the category. assume that it is al qaeda. you can't very well's if gone through all of thosehis, all you have left are voluntaryti th other and people say horrible things on the telephone. i don'think we've ever thought that we will turn that o because you do not want the telephone providers to say they have the right to ns. i want to talk about orwell a my reaction coming to this case

was similar to yours. i looked at this and i thought these are companies that have thr own rights. don't generally think of censorship as something from private people. it's the government. here's how i came around on this and maybe it will persuade you orbe i said this is something further up the food chain than that ordinary level of discourse. this is just the type of infrastrucre necessary to have any kind of discourse at all. that's like going bactohe telegraph. this isn't the level of discourse where they make our arguments built onth the infrastructure we need to have any rt if we say we want to have that type of infrastructure not to have censorship on it, that woulme we would have to have a massively increased federal government because it would have to control infrastructure.

now you can't scminate based on this kind of infrastructure of how thingrkats well. for me, for these kind of things like telephones or telegphor voluntary communication or the next big machine, those type of. there has to be some sort of way were we can allow people to communicate. >> is ecause of the modern public square?có some say there is a distinction between public and private and that is driving his anys to when and under what circumstances this kd regulation can be done. are you rejecting that because you're suggeinthat they merge in the situation given the

nature of communications? >> i'm t. i will try again to be artful beuse it's complicated. i think about the common carrier as a useful tool for discourse. we note there is a hard line to draw. it's hard to tell the difference between fair and miami herald. it will get down to the granular level but it's hard to tell. it needs to have some direction of where to awhe lines. common law and carriages that compass. common carrier could never have first amendment protected activity? does this have to be not t level of entity but what are they doing in a particular circumstance? you need to say these are common carrier so evethg they do is i'w

that that's the way we've ever thought about it. >> is what the court thought about it with telegraphs which i thk is a useful way of thinking about it. my friend and the government yshey are just transmitting speech but that's totall question begging. ey have the technological ability not just to doha the reason that cell phones don't screen your calls or telegraphs>> i'm sorry to ipt bi think you would agree with justice jackson that there might be some speech that these carriers would be their own. >> 100%. >> you have to take that function by function. >> yes. the other pa othis law which is important is to recognize that w=óyou don' about what they can say, i was to disaggregate the function.

they can say whatever they want about specific postsr anything, that's fine. but there is a separate thing they do which is facilitating conversations between two people which is like a phone. >> i undstd that. what we looked at in the past in the common carrier world is marketower. how do you analyze that here? on the one hand, there are network effects that one would take account of in any analysis of market power. that might help you. on the other hand, this is a bit unlike aelraph in the sense that there might only be one right-of-way to run the wires. there might be some practical barrrs one could start a new platform at least in theory anytime. fewer barriers teny but market effects. >> if we are not talking about

spchnd just in the world of conduct, we are not talking th maet power at all. we know that because cell phones are intensely competitive markets,ethere a we are seeing there is some as to focus on market power. it is true, this i not market power of there is just one bridge. but as an economic matter, there is dference. here is a simple way to look at it --wier has its platform and the e a lot of would-be mpetitors, including threads from meta,■ they invested massie amounts of money to try to break up the twitter monopoly and they failed miserab. >> there is some legislative ndings here about market power. what deference do we owe those? >> i would think considerable

deference. this is a sovereign state. you don't ally treat states like the sec. the state is entitled toake determinations as a matter of law. viously, it might be so far afield but i sure hope the states get some difference from this court. that justice gorsuch was asking, butoethe nature of the to us? the social media platforms and the internet is an incdiy dynamic market.gornnt, maybe no. d t, it's sort of an inection point to say the government has the authotyy categorizing the participantin rrrs to take over extensive

gulation of them. whether you artaed about railroads orras,t is not just moving, trapoation, it is what the railroads look like, the setthey have to have. they have to have a whole range of things. in the wild west economy surrounding the social media platformanthe internet may be inapt. i don't know if it comes at a time when you got to make that transition or not, but that's a very big step when it comes the extent of government regulation. >> i think that's fair my response will be that this is a facial pre-enfcent injunction. we should at least be able to make our showing on the facts. we are confident we can show not just market power but durable, extensive market power here. i don't think it will be all thattohextent the market power

is a requirementi ink they haven't shown their likely to prevail on the merits as to that. we a hpy to litigate that. it's hard to pick a few examples and say the whole thing failed. hat besides market power --;9 i want to give you an opportunity to elaborate on common carrier. he said conduct, market power, what else? >> the main requirements of common carriage -- this is where common carriage accommodation may be cousins, not twins. it has to be open to the public, not a private associational group. you hold yoursf t open to■ non-differentiated contracts. you have a conacwith everybody. that's the first one. the second is it has toe e type of industry that has

adionally been regulated as such. for common carriage, that is where you are talking about things like briesnd telecommunications. >>ut then you get into the oblem of having to draw thethe t the wild west of the internet and the internet looks a lot different. even these different plaor have different functionaliti within it. when you extend, you got grist mills and railroads and cable mpies. each time you encounter something new that might qualify as a common carrier, you have to make the decision if it fits the billr t. >> i can keep going further.■] that is why some courts said maybe there are some additional requirements to p on common carriage. one is market powe i don't know how it works with ce phones. the other was it has b vested in the public interest. under atwe know if it is

state action tblk somebody from your twitter account, how could that not be affected by blic interest? >> thank you. >> justice thomas, justice alito. >> i have a problem laws like this that are so broad that they stifle speech just on their face. meaning -- i think that is with the government has been trying to say. if you have a particular type o speech that you want to protect against or promote, it would be one thing to have that kind of law. but we he her that is also a direct msang app and there's no question your law covers tm but the whole business model is to promote themselves to a particular message and groups of messages. so, they are not doing it

inscriminately. you are basically saying to them if they are out erand they are a common carrier, they can't have this kind of business. >> two responses if i may. the first is as to the particarompany, we only are talkg about the three nication companies on earth. >> ok. >> as to the second point -- >> youre agreeing with them? >> yes, to the largest. even if you agree with all of applications of this law that should be allowed to go into effect. i don't see how they can say they can kick somebody off for off-platform speech of their grandmother. or because they don't like it where you live in texas.■

dallas, you arnoas valuable to the advertisers so we will surely, that can't be ok. >> justice kagan? justice kavanaugh? >> upon the deference to the legislative findings point, my memory is that the ia trial. >> yes, that's turner 2. maybe there will be a paxton 2. rhtbut there wasn't just congress said this, that is good to go, there was a trial about go to trial. >> that is all i wand ask. >> on common carrier, if a company says we are not a common rrr and we don't want to be, can the state make them into a common carrier? >> that's a great question. that washe first queioi had when i came to this case. the answer is no. if you are not cmon carrier, that is why it is important to

ink of it as a compass to tell you where the line is. i would urge the court if you are interested,e have talked about reading the professor's article. one thing that struck me as strange was wait, they have terms of service allow can they be a common carrier? this court addressed that very problem, the case that he cited is new york central v. lockwood from 1873 where the court said you can't just get out of the common carriage by contract. if you are a common carrier, you are a common carrier unless you don't open your sl up to the public. >> it seems a little circular but i will end there. >> i just wanted to get said tt facebook could geo-fence and pull out of texas? >> of course. >> i was confused because mr

clement was pointinguthat you couldn't. i'm lookinat43a.0002 and it says you can't censor or receive informatn sed on the user'sogphs ate or any part of the state. so you don't understand that to say th based on your location in texas, we are not going to let you post content? >> this is one of the ohitions of theaw that they can't -- let me say it a different way. there is a provision of the law which is the jurisdictial hook that says o is sub if you choose to do business in texas,hethis provision kicks in and you can'diriminate against people after you've chosen to do businesinexas. if you don'wa to do business in texas at l,hat's a separate provision and you can get out of texas. this is the prohibition on what

you can't do if you do to do business in texas, you cannot discrith a in el paso. >> and doing business in texas is just allowing febk users sign up in texas? is it facebook accepting advertising money from texas corporations? >> that question h n been resolved by any of the texas courts. as i read it, you have to have customers in texas. you've entered into contractual relationships with texans. >> justice jackson? >> justi brett had my me thought. i just want to clari. so this doesn't speak to a bune decision not to offer services in texas because their requirements are too burdensome? instead, you're offering busissn texas and everywhere else but you are prohibiting them from discriminating against people on the basis of tir geography, in texas.

>> yes, your honor. >> thank you. >> rebuttal, mr. clement? >> just a few points in rebutt. as to the common carrier, the two classic elements of common carrier status is missi he. one is you put transmitted o carried message fropoina point b. that is not is wh's going on here. diemate means to spread ren the expressive enterprise business. there is zo adition of treating entities in the expressive enterprise business asommon carriers. the other factor is there is an essential facility like telephone wires went to every house in america so if you a kicked off, you were out o luck. this ithopposite situation where you have lots of other chce this is not a common cerjustice.

second, public accommodation. i wouldn't be worried about any other accommodation law which prohitdiscrimination on the basis of viewpoint. itpplies exclusively to speakers. that is a first amendment red flag that you are trying to limit speakers ability"no discriminate on the basis of viewpoint. that is a frontal assault on editorial discretion. every other public accommodation law i am aware of works fferently. the third point is protecting kids. if you are concerned about protecting kidonhe internet, that should be a vote in our favor in this case. if you cannot do vwpnt discrimination, that disabs from doing many of the things companies try to do to protect use online. idea of we have to e between -- if we have suicide prevenon we have to have suicide promotion to avoid discrinaon. that should be a nonstarter and protecngids is important even in the disclosure provision. there is a record on this case

on page 161 of the joint appendix, wiess testified and said of these discloser provisions give a roadmap to edors to figure out why the messages are not getting two children. to figure out why theyot bounced and word eir way around. this is an important point to end on -- the eahat somehow we are behind the eight ball because we brought a facial chlenge. there is a proud traditionf facial challenges to vindicate first amendmt ghts in this country. that's how many othe cases have been brought. there is an equally proud tradition a preliminary injunction against a law that is killin sech. as the general pointed out, th party presentation rules have to be foundational. ife d gone into the stcthiis unconstitutional on its face and they said no it's not because of gmail, we could've had a fair

debate about that and modified our complaint of necessary. that's a difficult issue. the only court that deals with this directly said gmail is not a common carrier. we could have litigated all of that but the plaintiff'burden is not to think of any theory to come up with an appeal and then foreclose it in district court.,